Transparency trade-off means FOI will get more expensive

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Disclosure statement

Johan Lidberg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Tony Abbott’s 2013 election platform promised to “restore accountability and improve transparency measures to be more accountable to you”.

In spite of this promise the first Abbott government budget will see the Office of the Australian Information Commissioner (OAIC) closed, and its functions assigned to other government agencies. This back-to-the-future move is likely to make it harder and probably more expensive for long suffering FOI users.

The OAIC was formed in 2010 as part of the reforms of the federal FOI law, which sought to address long turn-around times and an expensive appeal system for rejected FOI requests that had rendered the first 1982 law close to useless.

The OIAC brought together the privacy and Freedom of Information (FOI) commissioners, allowing appeals on rejected requests to be made directly to the FOI commissioner. This proved a much cheaper process than the old system of having the appeals dealt with by the Administrative Appeals Tribunal (AAT). Had the OAIC been properly staffed and funded it would most likely also helped improve turnaround times compared to the AAT.

From the budget statement, it’s clear the FOI review function will be transferred back to the AAT from 2015. Funding for the AAT will be beefed up with some of the $35 million in savings (over five years) delivered as a result of the restructure. The Abbott government claims this will make the FOI appeals process more effective.

A step backwards

In reality the budget has returned much of the federal access to information system to its dysfunctional pre-2010 state. The cost to appeal a FOI decision could increase significantly. The fee to lodge an appeal with the AAT is currently A$816. Some of the FOI reviews could be exempt from the fee and part of the cost will be refundable if you win the appeal, but in most cases the fee will increase. Add to this the cost of legal representation needed before the AAT and most FOI applicants will probably think twice before they appeal.

The Attorney-General’s department will from 2015 be responsible for overseeing the Freedom of Information Act and issuing FOI guidelines. In essence Attorney General George Brandis will be expected to drive the decades-long effort to change the culture of secrecy to one of openness and facilitation of access to information. Based on Brandis’ weak interest in the Open Government Partnership there are reasons for concern regarding this culture change aim.

What the research tells us

Preliminary findings in my research project comparing the first generation Victorian FOI law with the reformed Commonwealth law shows the federal law provides quicker and easier access to information.

In the project six members of the public were asked to seek the expense accounts (including details of travel and work dinners) of six Victorian state ministers and their federal counterparts. For all the federal ministers the information was found and downloaded within hours without submitting formal FOI requests. In Victoria FOI process, while the requests were submitted in most cases, the information was not obtained.

The federal reforms were overseen and to a large extent driven by the OAIC. The question is, will Attorney General George Brandis carry on the work of the OAIC? Openness, transparency and accountability is easy to promise when in opposition, but hard to deliver in government. This is why the Open Government Partnership is so important.

The starving of the Commonwealth FOI system in this federal budget will most likely make it harder for long suffering FOI users. This is a great pity. A well functioning FOI system creates a win-win situation. It encourages public participation in the political process and it builds trust between governments and citizens via true openness and transparency.

It is hard to see how the slashing of the OAIC will deliver on the Abbott election promise of increased government accountability. Perhaps this should be added to the growing list of “please explains” that the first Abbott/Hockey budget has created.